[1] Standard for determining whether a worker has worked at least 80% for one year, and whether the period of suspension of work due to an occupational injury or disease should be calculated by including both contractual working days and working days in both contractual working days (affirmative)

[2] Where an employee is entitled to claim annual leave allowances, and where a right to claim annual leave allowances or a right to claim annual leave allowances falls under the amount of remuneration for his/her previous year’s one year’s previous year’s previous year’s previous year’s previous year’s previous year’s previous year’s previous year’s employment (affirmative)

[3] Whether such an agreement is valid in cases where the criteria for calculating wages that only a part of the wage items included in ordinary wages under the Labor Standards Act is to be additionally paid under an agreement between labor and management (affirmative)

[1] The annual paid leave under Article 60(1) of the Labor Standards Act is granted to workers who work for at least 80% per year. In this case, whether workers have worked for at least 80% per year shall be determined on the basis of the ratio of the number of days worked actually provided by the workers, i.e., the number of days worked after the worker has worked for at least 80% per year from the total calendar days of one year, i.e., the ratio of the number of days worked after the worker has worked for at least 80% under statutes

Meanwhile, Article 60(6)1 of the Labor Standards Act provides that when calculating the attendance rate as above, the period of suspension of work due to occupational injury or disease (hereinafter “occupational accident”) shall be deemed to be the period of attendance at work. This purpose is to prevent disadvantages that a worker could not provide due to occupational accidents even if he/she could not provide labor due to occupational accidents, but receive less annual leave than the case where he/she did not have any occupational accidents. Therefore, the period of suspension of work due to occupational accidents shall be calculated by including both the contractual working days and the working days in the total number of days, regardless of the length of the work. Even if the period extends over one year as a whole or the contractual working days, there is no reason to deem otherwise.

[2] Where an employee is unable to use his/her annual leave within one year after he/she acquired his/her right to annual leave or where he/she becomes unable to use his/her annual leave due to reasons such as retirement before one year elapses, he/she may claim the employer the annual leave allowance equivalent to the number of annual leave days. Meanwhile, the right to use the annual leave or the right to claim the annual leave allowance naturally occurs when the employee provides his/her work while meeting the attendance rate in the previous year. Thus, it constitutes the amount of annual leave, not the pertinent year, but the remuneration for his/her work for the previous year.

Therefore, even if a worker is unable to work at all during the pertinent year due to occupational accidents, etc., he/she is entitled to claim annual leave allowances for which he/she has not already been granted annual leave. The collective agreement or rules of employment that limits the claim for annual leave allowances are set working conditions that fall short of the standards set forth in the Labor Standards Act, and thus is invalid.

[3] In a case where a labor-management agreement provides for the additional payment of wages that are not prescribed in the Labor Standards Act, the criteria for calculation shall be as prescribed by the labor-management agreement, and it does not necessarily have to be based on ordinary wages, which are the basis for calculating statutory allowances, etc. under the Labor Standards Act. Therefore, even if the wage amount included in the ordinary wages under the Labor Standards Act was set as the basis for

[1] Article 60 (1) and (6) 1 of the Labor Standards Act / [2] Articles 15 and 60 (6) 1 of the Labor Standards Act / [3] Article 6 of the Enforcement Decree of the Labor Standards Act

[1] Supreme Court Decision 201Da4629 Decided December 26, 2013 (Gong2014Sang, 289) / [2] Supreme Court Decision 92Da24509 Decided May 27, 1993, Supreme Court Decision 99Da10806 Decided December 22, 2000, Supreme Court Decision 2003Da48549, 48556 Decided May 27, 2005, Supreme Court Decision 2009Da86246 Decided October 13, 201 (Gong201Ha, 2316) (Gong201Ha, 2316) / [201Da9519 decided March 13, 2014] Supreme Court Decision 201Da9519 decided March 13, 2014

Plaintiff

Korea Aerospace Industry Co., Ltd. (Law Firm Mapyeong, Attorneys Kim Sung-soo et al., Counsel for the defendant-appellant)

Busan High Court Decision 2013Na21461, 2014Na20274 decided October 30, 2014

The part of the judgment of the court below regarding the claim for annual leave allowance is reversed, and that part of the case is remanded to Busan High Court. The remaining appeal is dismissed.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the ground of appeal on the claim for annual leave allowance

A. The annual paid leave under Article 60(1) of the Labor Standards Act is granted to a worker who has worked at least 80% per year. In such cases, whether a worker has worked at least 80% per year shall be determined on the basis of the ratio of the number of days worked actually provided by the worker, i.e., the number of days worked (hereinafter “fixed working days”) out of the total number of days calculated by subtracting the days determined as having no obligation to work under statutes, organization agreements, employment rules, etc. from the total number of calendar days for one year (hereinafter “fixed working days”).

Meanwhile, Article 60(6)1 of the Labor Standards Act (hereinafter “instant provision”) provides that when calculating the attendance rate as above, the period of suspension of work due to occupational injury or disease (hereinafter “occupational accident”) shall be deemed to be the period of attendance at work. This purpose is to prevent disadvantages that an employee was unable to provide labor due to occupational accidents even if he/she was unable to do so due to occupational accidents, that employee would receive less annual leave than that of his/her occupational accidents. Therefore, the period of suspension of work due to occupational accidents ought to be calculated by including both the fixed working days and the number of attendance days in total, regardless of the length of the work. Even if the period extends over one year as a whole or all the fixed working days, there is no reason or reason to view otherwise.

Furthermore, in cases where an employee could no longer use his/her annual leave due to reasons such as failure to use his/her annual leave within one year after he/she acquired his/her right to annual leave or retirement before one year elapses, he/she may claim the employer the annual leave allowance equivalent to his/her annual leave days (see Supreme Court Decisions 9Da10806, Dec. 22, 2000; 2003Da48549, May 27, 2005; 2003Da48556, May 27, 2005, etc.). Meanwhile, the right to use his/her annual leave or the right to claim annual leave allowance naturally arises when the employee provided his/her work while meeting the annual leave rate in the previous year, which constitutes a payment for his/her work for the previous year not for the pertinent year but for the previous year (see, e.g., Supreme Court Decisions 2009Da86246, Oct. 13, 2011);

Therefore, even if a worker was unable to work at all during the pertinent year due to occupational accidents, etc., he/she may claim annual leave allowances for which he/she had already received annual leave. Collective agreements or rules of employment that limit the claim for annual leave allowances are set working conditions that fall short of the standard prescribed in the Labor Standards Act and are invalid (see Supreme Court Decision 92Da24509, May 27, 1993, etc.).

B. The reasoning of the first instance judgment cited by the lower court reveals the following: (a) the Plaintiff, an employee of the Defendant, was unable to work entirely from December 2, 2000 to July 2012 due to occupational accidents; and (b) the collective agreement or rules of employment provide that “where an employee does not work for the entire one year period, he/she does not grant annual leave or does not pay annual leave allowances.”

In this part of the claim, the Plaintiff acquired the right to use the annual leave by deeming the aforementioned period of time that the Plaintiff did not work as above in accordance with the instant provision as the date of attendance, but did not actually use the annual leave. The Defendant asserted that the Defendant is obligated to pay annual leave allowances equivalent to the number of annual leave days during the period from 2009 to 2011, which the Plaintiff sought.

The court below rejected the Plaintiff’s assertion on this part, citing the reasoning of the judgment of the court of first instance, based on the purport that the contents of the collective agreement or employment rules, which determined not to pay annual leave allowance, are valid when the employee fails to work at all in the pertinent year where he will use the annual

C. However, according to the legal principles as seen earlier, ① even if the Plaintiff’s period of suspension from occupational accidents is all one year, it is clear that the Plaintiff’s attendance rate should be met each year from 2008 to 2010, and ② it is not possible to claim annual leave allowances on the ground that the Plaintiff did not work at all during the period from 2009 to 2011, which was allowed to use annual leave, and thus, the collective agreement or employment rules prescribed otherwise have no effect.

Therefore, the above judgment below erred by misapprehending the legal principles on annual leave or annual leave allowances, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

2. As to the ground of appeal on the claim for temporary layoff benefits

In a case where a labor-management agreement provides for the additional payment of wages that are not prescribed in the Labor Standards Act, the standard for calculation shall be as prescribed by the labor-management agreement, and it does not necessarily have to be based on ordinary wages, which are the basis for calculation of statutory allowances, etc. under the Labor Standards Act. Therefore, even if the wage amount included in ordinary wages under the Labor Standards Act is determined as the basis for calculation of wages that partially pay the above additional amount, such agreement is valid (see Supreme Court Decision 2011Da81022, Jan. 24,

The lower court, citing the reasoning of the first instance judgment, determined that the 30% of the “ordinary wage,” which is paid as part of temporary layoff benefits, constitutes a benefit for which the Labor Standards Act provides no standard, and thus, a collective agreement that excludes allowances, etc. to be included in ordinary wage under the Labor Standards Act from the “ordinary wage” for calculating the above benefits is valid, and rejected the Plaintiff’s assertion on different premise that the Defendant is liable to pay the difference of

Examining the aforementioned legal principles and evidence duly admitted, the lower court’s aforementioned determination is justifiable. In so determining, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine

3. Conclusion

Therefore, the part of the judgment of the court below regarding the claim for annual leave allowance is reversed, and that part of the case is remanded to the court below for a new trial and determination, and the remaining appeals are dismissed. It is so decided by the assent of all participating Justices

Justices Kwon Soon-il (Presiding Justice)